Former Chief Justice David Maraga has blasted President Uhuru Kenyatta for refusing to swear in six judges, saying his legacy will be ruined by blatant disregard for the Constitution.
In an interview on KTN, Maraga said Uhuru is constitutionally bound to appoint all judges nominated by the Judicial Service Commission and his veto on six names amounts to a violation of the law.
“I will remember him as a president who has no regard for the law,” he said when asked about Uhuru’s legacy.
Last Thursday, Uhuru appointed 34 judges and rejected six candidates. High Court judges Joel Ngugi, George Odunga, Weldon Korir and Aggrey Muchelule, as well as chief magistrate Evans Makori and High Court registrar Judith Omange were rejected on grounds that they have suitability issues.
Maraga, who chaired the JSC interviews and nominated the 41 judges, said the President did not present any detailed adverse reports against the six, even after he was asked to.
The retired CJ claimed that the names of the judges initially blacklisted were changed, raising suspicion that the rejection was fuelled by vendetta.
“The names have changed. I can confirm that. Those who were said to have issues others have been added and others removed from the list. If they were bona fide allegations, why are they shifting? Why are they changing the names?” he posed.
Uhuru has this week come under twin assaults from the country’s retired top judges, with Maraga’s predecessor Willy Mutunga describing his failure to swear in the six judges as “a dangerous dalliance with impunity”.
Mutunga on Tuesday accused Uhuru of abusing his presidential authority, terming his exercise of power egregious, reckless and insensitive.
Maraga, for his part, protested that Uhuru’s action amounted to denting the character of the justices as they have been condemned unheard. He claimed the President rejected Odunga and Ngugi because of their ruling that scuttled the push to amend the Constitution through the Building Bridges Initiative.
The two were part of the five-judge bench that ruled that the BBI is unconstitutional.
“These judges have been condemned unheard… Now, in the eyes of the public, these are the corrupt judges the President was talking about. That is the message out there. And that is condemning these people unheard. It can’t happen like that,” Maraga said.
He said during his tenure as CJ and the President of the Supreme Court, he rejected proposals by the President that he appoint some of the judges. He said he does not know if the President and his successor Martha Koome negotiated and agreed on cherry-picking of the judges. Koome was at State House, Nairobi when the 34 judges were sworn into office.
Maraga lamented that disobedience of court orders by Uhuru and his Cabinet had reached unprecedented levels. If this continues unrestrained, the country is staring at anarchy and impunity in the face, he warned, calling on the President to respect the Constitution and the separation of powers.
“The Constitution says the power belongs to the people of Kenya. The Executive power is that of the President, the judicial power is that of the Judiciary and the legislative power is that of Parliament,” he explained.
“The Constitution requires each of the three arms of government to keep to its lane. It should not overlap. The functions given to the President cannot be performed by the Judiciary. The powers of adjudicating cases belong to the Judiciary and the President cannot purport to do that or even the speakers of Parliament.”
Maraga said the reason the country has found itself in this situation is that the Opposition is dead since the March 2018 handshake between Uhuru and ODM leader Raila Odinga. He said if there was a vibrant opposition as it was before, Uhuru and his officers would not have the audacity to disobey the law.
According to the former CJ, Kenya will become a banana republic if no urgent action is taken to tame Uhuru’s thirst to control all arms of government.
“The handshake brought peace, but at what cost? If people were doing their right thing, the opposition, which is now in the handshake, should condemn this act of the President and tell him we are with you but this one, you are not doing the right thing. Hear what the people of Kenya are saying. That is what we expect the opposition to be doing,” he said.
The ex-CJ said without meaningful electoral reforms, even if the Constitution is amended through the BBI, Kenya was staring at a more deadly electoral conflict in the face than the 2007 bloodletting.
He said there is an urgent need to put in place all the reforms at the Independent Electoral and Boundaries Commission as per the recommendations of the Johann Kriegler Report.
“The entire purpose of the handshake was that we have violence all the time after every election. Let us deal with it so that we don’t have a repeat of it all the time. But the BBI has taken a different trajectory.
“The issue of electoral fraud is not paramount. From the time of the handshake until the other day is when they are appointing IEBC commissioners. How many years are those? Kriegler stated clearly that the IEBC should be in place two years before a general election. That has not been done, it is now just being done.
“If we don’t get an independent IEBC and we have electoral fraud committed in the next election, whether the Constitution will have been amended and we have the position of prime minister and two deputies, among others, we will go back to problems,” he said.
Maraga noted that what will address the perennial election violence is to have an independent IEBC that will conduct elections transparently and within the laws. He also warned that no one should think of extending the term of the Jubilee administration, saying the Constitution is clear on the term limits of a president.
“The Constitution limits the term of the President to two terms of five years each. He cannot even extend it by a day. He can’t do that. In the same way, it also limits the term of Parliament to five years,” he said.
“The Constitution also talks of when you can extend the term of Parliament—when we are at war or when there is a state of emergency.”